Brexit, Equality and the Repeal Bill: Briefing for Members

Executive Summary

This briefing considers the effect of the European Union (Withdrawal) Bill (the Bill) and the risks and opportunities it presents to equality and human rights law. It outlines areas where the EDF proposes to support amendments to the Bill which aim to achieve our policy objectives.

These are to:

Promote a vision for a modern outward-looking and high standards Britain after we leave the EU, where we can build on current rights to equality, respect and inclusion

Ensure continuity of our current equality and human rights and protections, and ensure there can be no process for them to be changed without appropriate parliamentary scrutiny and involvement of citizens and civil society

Ensure that all future legislation embeds rights to equality on a constitutional basis.

The UK has a strong tradition of protecting and promoting equality and human rights. While we were members of the EU this was further bolstered by EU legislation and caselaw. We therefore consider it important that the Bill should be strengthened so it maintains legal continuity, and promotes these essential rights and freedoms within the UK. We believe that the Bill requires further clarity to –

Rule out the use of delegated powers to amend or limit equality and human rights laws

Ensure that the use of delegated powers has proper and appropriate parliamentary scrutiny

Include a principle of non-dilution of equality and human rights on the face of the Bill

Retain the protections of the EU Charter of Fundamental Rights,

Introduce a constitutional right to equality

Ensure that Courts consider whether it is appropriate to take account of EU law when construing or applying law relating to equality and human rights.

We also consider that the Bill must receive proper parliamentary scrutiny, as it is a major constitutional bill.

Protection from use of delegated powers

The EDF considers that the Bill should explicitly rule out the use of delegated powers to make changes to equality and human rights law. This would ensure that Parliament retains the right to scrutinise any changes to the UK’s equality and human rights laws by requiring that such changes be made by primary legislation rather than delegated powers.

The Bill contains wide regulation making powers which can be used when the Minister considers it appropriate to
‘prevent, remedy or mitigate –

a) Any failure of retained EU law to operate effectively, or
b) Any other deficiency in retained EU law,
Arising from the withdrawal of the United Kingdom from the EU’.

There are several qualifications to this power including that these regulations cannot ‘amend, repeal or revoke’ the Human Rights Act (HRA) or be made more than two years after the EU exit day. There is a similar power in relation to obligations under International Treaties which we no longer meet following Brexit.

The Bill contains further regulation making powers in order to implement the withdrawal agreement ‘if the Minister considers that such provision should be in force on or before exit day.’ There are some qualifications to this power including that these regulations cannot ‘amend, repeal or revoke’ the HRA and they cannot be made after the exit day. These are exceptionally broad and far reaching powers which are unprecedented.

Regulations, or statutory instruments, are made with the approval of Parliament but they do not have to go through the same rigorous scrutiny by Parliament before they come into effect. It is clear that with the quantity of legislative changes that will have to be implemented within a relatively short period, statutory instruments will need to be used extensively. The Government has made clear these would be used ‘to deal with deficiencies’ for instance around harmonisation issues or minor matters such as a change of name. These are suitable for the use of delegated powers. However, there is the potential for the use of delegated powers which could have far-reaching effects without a high level of scrutiny.

The EDF therefore considers that a new House of Commons sub-committee should be set up specifically to scrutinise the delegated legislation arising from the Bill and to recommend the level of scrutiny each regulation should receive as it progresses through Parliament.

How are regulations/statutory instruments made?

There are three main procedures used in order to approve regulations depending on the amount of scrutiny by Parliament they are thought to need. These are: the negative procedure, affirmative procedure, or the super-affirmative procedure.

The negative procedure – regulations subject to this procedure become law on a stated date unless a motion is passed in either House annulling the instrument. A request for such a motion must be made within 40 days of the regulation being laid in Parliament. The vast majority of regulations are made using this procedure

The affirmative procedure requires a positive vote in each House to approve the regulation as a whole

Finally, certain Acts require the use of a super-affirmative procedure which is more rigorous and the procedure for these is set out in the relevant Act itself.

The Bill provides that most regulations will be subject to the negative procedure however, in six limited situations the affirmative procedure will apply.

Statutory Instruments, with just a few exceptions, cannot be amended by Parliament. This is because it is thought to undermine the principle of delegation of power to Ministers.

Both Houses of Parliament are therefore confronted with an unpalatable ‘take it or leave it’ choice to accept a Statutory Instrument even if they believe it is fundamentally flawed, or reject it entirely even if some elements are acceptable. In practice, very few Statutory Instruments are ever rejected.

The EDF welcomes the government’s stated intention to retain current protections. In practice however, the wide regulation-making powers contained in the Bill mean that future administrations could use these ‘take it or leave it’ Statutory Instrument processes to undo or weaken current protections.

Exempting equality and human rights from the use of delegated powers is the simplest way of ensuring this cannot happen.

Non-dilution of equality and human rights law

The Bill should set out a clear principle that leaving the EU should not mean that equality and human rights law is diluted.

The Government’s commitment to continue to ‘protect all the protections covered in the Equality Act 2006, the Equality Act 2010 and equivalent legislation in Northern Ireland will continue to apply once the UK has left the EU’ is welcome. The Bill needs to make this explicit on the face of the Bill.

The Bill is an important constitutional measure so it needs to include a clear commitment to retain and protect our existing equality and human rights laws.

We will support a new clause which will require Government when drafting Brexit-related legislation to take account of the following principles and to make a statement to Parliament setting out how they are reflected in the proposed legislation:

That law relating to equality and human rights:

Is to be retained and protected;

Should continue to reflect best international practice and standards; and

Should be scrutinised effectively by Parliament.

The clause will help to ensure there is no dilution of our equality and human rights laws as we leave the EU and that Parliament is able to fully scrutinise any changes.

Retention of the protections of the EU Charter of Fundamental Rights

The Bill should retain the protection of the EU Charter of Fundamental Rights in UK law. As it is currently drafted the Bill will explicitly remove it.

The removal of the Charter will diminish UK law. It will mean that some of the rights relating to children as well as the free-standing non-discrimination provision will no longer have the same protection in the UK at a constitutional level.

The Government has said that many of the rights contained in the Charter also occur in other UN treaties that the UK has ratified. This is true, but as the UK has not incorporated these treaties into UK law they do not have a direct effect in the UK and so do not provide equivalent protection to that contained in the Charter.

Constitutional right to equality

The Bill should include a constitutional right to equality on the face of the Bill.

Currently, most of our equality rights and freedoms are underpinned by EU law so that our domestic law cannot fall below the standard of EU law.

This is an important guarantee of minimum levels for equality rights. It has been used to enable workers to claim equal pay for work of equal value and to ensure that pregnant workers’ rights are protected. When we leave the EU we will lose this additional layer of protection of our rights and freedoms.
Parliament could turn this loss into an opportunity to cement our commitment to being a world leader on equality by creating a constitutional right to equality. This would provide certainty and predictability in the future.

This could be achieved by including a free-standing right to non-discrimination within the Bill. This right would have the same constitutional status as rights protected under the Human Rights Act and would be enforceable in the same way.

The key aims of such a right are that:

it would enable laws and state actions to be tested against our right to
equality and non-discrimination

A Minister introducing a new bill would need to state whether or not the bill is
compatible with the constitutional right to equality. This would provide an important tool in ensuring parliamentarians have Government’s explicit policy justifications to inform debates and would also provide a standard for scrutiny of legislation by parliamentary committees.

Courts’ consideration of EU law

The EDF considers that a clause is needed in the Bill to clarify when and how the Courts can take into consideration developments in EU law after the UK has left the EU. We suggest that the Bill should provide that the Courts should consider CJEU caselaw when a doubt arises as to the construction or application of any law relating to equality or human rights.

The Bill provides that existing Court of Justice of the European Union (CJEU) case law is retained as law, but allows the Supreme Court of the United Kingdom and Scotland’s High Court of Justiciary to depart from it, after applying the same test as they would apply in deciding whether to depart from their own case law. CJEU judgments made after the date of exit will no longer automatically become binding in the United Kingdom but the UK courts may consider them if they consider it appropriate to do so . However, the Bill does not provide any guidance about when and how they should do so. The proposed clause we have outlined ensuring the Courts consider CJEU caselaw when doubts arise would provide a sensible level of consideration, without binding the UK Courts.

What happens next?

The Repeal Bill has been published and had its first reading in the House of Commons on July 13th. Its second reading took place on September 7th and 11th. This provided an opportunity for MPs to set out their initial views. Amendments are not normally introduced at this stage, they will be introduced at Committee stage and/or Report stage which are likely to take place in October and November.

While the Parliamentary debates are continuing various Parliamentary Select Committees will undertake legislative scrutiny or will report on their view of the Repeal Bill and its implications.

They are likely to include the House of Commons Select Committees on DExEU, Women and Equalities, Devolved Nations and the Procedure Committee.

In the Lords, they are likely to include the Delegated Powers and Regulatory Reform Committee, the Secondary Legislation Scrutiny Committee, the Constitution Committee, the EU Committee, the Procedure Committee and the EU Justice sub-committee.

There are also two joint committees of both Houses: the Joint Committee on Human Rights and the Joint Committee on Statutory Instruments.

Background

The Government triggered the UK’s exit from the EU on March 30th 2017. The Treaty on European Union provides for a two-year period of negotiation before exit takes effect by operation of law, whether or not any suitable trading agreements had been reached by then. The European Union (Withdrawal) Bill (the Bill) was published on July 13th 2017 and it contains the principle provisions to enable the UK to leave the EU ensuring ‘that the UK exits the EU with certainty, continuity and control’. Its aim is to ensure that ‘so far as possible, the same rules and laws will apply on the day after exit as on the day before’.

The Repeal Bill provides that EU derived legislation as it stands the day before exit day will form part of UK law on and after exit day. EU derived legislation will include any EU regulation, EU decision or EU tertiary legislation. The Bill provides specifically that the Charter of Fundamental Rights will not be part of UK domestic law on or after exit day. The principle of the supremacy of EU law over UK domestic law will not apply to any law or rule passed after exit day. However, EU law will apply to the interpretation of UK law after exit day ‘so far as relevant to the interpretation, disapplication or quashing of any enactment or rule of law passed or made before exit day’.

There is a strong case and opportunity for the UK to be a global leader on equality. At a national level, the referendum outcome highlighted the need to tackle inequality, discrimination and injustice. However, there can be no guarantees that current or future governments of whatever political party will advance or strengthen equality legislation.

In addition, the UK will no longer have access to Court of Justice of the European Union so we will not be able to ask them to enforce any of the European equality provisions.

Leaving the EU does not mean that we leave the European Convention on Human Rights so we will continue to have access to the European Court of Human Rights. However, questions have been raised about our continued membership of the European Convention on Human Rights, once we have left the EU, in the context of the proposed British Bill of Rights.

While it is not possible to predict with certainty what current or future governments would do, we need to continue to put the case for both protecting existing rights and freedoms and building on them in the future.